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Under FIRE: Campus Speech Regulations Once Again

By Stanley Fish April 29, 2007 8:47 pmApril 29, 2007 8:47 pm

Last week saw the end of a little drama that had been playing out on the campus of the University of Rhode Island for some months. On April 26 the student senate turned back a committee recommendation to “derecognize” the College Republicans because the group refused to apologize for one of its actions. What the College Republicans had done was invite applications for the “First Annual White Heterosexual Male Scholarship,” otherwise known by the acronym WHAM. Applicants were asked, first, to certify that they were indeed white, heterosexual, American and male and then to answer two questions: “In 100 words or less, what does being a White Heterosexual American Male mean to you? As a White Heterosexual American Male, what adversities have you had to deal with and overcome?”
Many of the 40 or so who sent in applications recognized the satirical intention (to ridicule and parody raced-based scholarships and other forms of campus affirmative action) of the obviously bogus scholarship and wrote in the same spirit. But the student senate was not amused, and in February the Student Organizations Advisory and Review Committee demanded that the College Republicans: A) not award the $100 scholarship, B) apologize in writing for having violated the anti-discrimination section of the senate’s bylaws, and C) seek permission from the senate before mounting any programs in the next 12 months. The group cheerfully agreed to A – why not? – and declined to comply with B and C.

In response the Advisory and Review Committee exercised the nuclear option and voted to derecognize the group, in spite of the fact that Robert Carothers, the university’s president, had declared on April 6 that it was unconstitutional to require the College Republicans to “make public statements which are not their own.” (The relevant First Amendment category is “compelled speech.”) Given Carothers’s unequivocal position, it was only a matter of time, and the time arrived last Thursday, before the Senate backed down, asking only that the College Republicans issue an explanation of the point they were trying to make. The group is reported to be satisfied with this condition, as well it might be, since it now has another (and mandated) opportunity to get its point of view out to the public.

There is nothing particularly interesting or edifying about this incident. One could accuse the College Republicans of bad taste and the Senate committee of overreacting and of failing to understand what the First Amendment protects (since Hustler v. Falwell, it protects political satire no matter how crude or offensive), but that is more or less par for the course in such matters.

What is interesting, however, is that at least part of the credit for the resolution of the controversy belongs to an outside agency, FIRE, the Foundation for Individual Rights in Education, a campus watchdog group founded by free speech activists Alan Kors and Harvey Silverglate, authors of “The Shadow University: The Betrayal of Liberty on America’s Campuses.” FIRE wrote one letter to the student senate president, and two letters to President Carothers. The second of those letters ended by reminding the president that “FIRE is prepared to use the full extent of its resources to see this matter through to a just and moral conclusion.”

Those resources include, in addition to a staff well-schooled in First Amendment law, the ability to command the microphones of Fox News and the pages of The New York Post. Last week, FIRE announced that, beginning immediately, it will have its own weekly column in the Post, titled Campus Watch. The first of the columns ran on April 24 and alerted Post readers to the situation at U.R.I.; two days later the student senate capitulated. Cause and effect in these matters is never simple, but there would seem to be some truth to FIRE’s boast, made in a press release the same day, that the senate acted in response to “pressure from the Foundation for Individual Rights in Education.”

In fact, if you check out FIRE’s Web site, you’ll find that literally scores of colleges and universities have felt that pressure. Time and again, FIRE reports a happy ending that was reached “Thanks to FIRE’s intervention.” Nor does FIRE wait for an actual incident before it intervenes. Independently of any complaint, FIRE issues assessments of campus speech codes and mission statements and often finds them in violation of First Amendment strictures. One report surveys all 16 schools in the University of North Carolina system and concludes that 13 of them “have at least one policy that both clearly and substantially restricts freedom of speech.” You can bet that the university’s administration is paying attention. A new feature on the FIRE Web site highlights “The Speech Code of the Month.” No college or university president will want his or her institution to be accorded that “honor.”

FIRE is not the only watchdog organization looking for what it deems bad behavior. One reason the Don Imus comment received such widespread and immediate attention was that Ryan Chiachiere, a researcher and writer, was watching and recording the show for the liberal group Media Matters for America. Soon a clip of the offending moment appeared on the group’s Web site and on YouTube. In little more than a week, Imus was off the air.

The difference between Media Matters for America and Fire is that while the former is a frankly political organization – dedicated, its home page says, to “correcting conservative misinformation” – the latter is dedicated to protecting the First Amendment rights of students and teachers no matter what their political affiliations. One sees itself in the business of improving the culture in the right (that is, left) direction; the other sees itself in the business of making sure that colleges and universities know what the law is and obey it.

Not everyone would accept this account of what FIRE stands for. In an essay in the April 20 issue of The Chronicle of Higher Education, John B. Gould, a lawyer and professor at George Mason University, criticized the organization for exaggerating the extent to which higher education is “under siege from a politically correct plague of hate-speech codes” and for being ideologically selective in its targets. What FIRE is really after, said Gould, is “liberal, academic censors.” Not so, replied FIRE, citing a number of left-leaning academics – including Sami al-Arian of the University of South Florida and Ward Churchill of the University of Colorado – to whose defense it has risen.

Much of the disagreement between Professor Gould and FIRE turns on the technical question of what does and does not amount to harassment. FIRE follows a 1999 Supreme Court decision (Davis v. Monroe County) in asserting that speech is harassing, as opposed to being merely offensive, if it is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Professor Gould’s threshold for deeming a form of speech harassing would be lower and would be tied to what he considers to be the prevailing norms of “civil society.” Students, he reports, arrive on campus “already believing that colleges should prohibit sexist speech,” and their view is in line with the 55 percent of those surveyed by the First Amendment Center who don’t think that the right of free speech allows people “to say things in public that might be offensive to racial groups.” By that standard – being offensive to racial groups – the College Republicans’ mock scholarship offer would be an appropriate candidate for regulation. In FIRE’s view, the degree of protection extended to an individual’s speech should not turn on public opinion or cultural norms, but on abstract legal categories that stand free of either.

What we see here is a tension (which I have noted in earlier columns) between a desire to have our laws and procedures reflect our sense of social justice and a resolution to adhere to first principles – “Congress shall make no law abridging freedom of speech” – no matter where obedience to their dictates may take us. Professor Gould looks around and finds that behavior once acceptable and unchallenged – the making of sexist and racist comments – has come to be regarded as objectionable and harmful, and he concludes that our enlightened views should be reflected in campus regulations. FIRE would no doubt respond that our present understanding of social justice and civility is temporary and revisable; to enshrine it in law would be to have the law bend to the received wisdom of the moment, which would mean that the law would no longer be a normative enterprise and would instead be a plaything of politics. (When the received wisdom of the moment changed, it would change too.) I have been on both sides of this divide, and at this point all I know is that it cannot be bridged.

Although I would agree that the student senate overreacted, I fail to see any constitutional issues in this episode at all. Surely no one has a constitutional right to be a student at the University of Rohde Island, any more than Don Imus has a constitutional right to employment as a shock jock.

I’m a liberal Democrat, and it is because I am a liberal Democrat that I stand strongly for free speech that offends. Non-offensive speech doesn’t need to be protected. What is happening to this group of College Republicans is wrong, terribly wrong.

The people who want to call for Bush’s impeachment are protected, and so are the pro-lifers who show huge pictures of fetuses, David Duke and Al Sharpton. Speech is protected, because without free speech, democratic government is doomed.

There is a place in the law for both first principles, like free speech, AND the wisdom of the moment/some current notion of social justice. For example, free speech stands as our first principle, and court proceedings that advocate some wisdom of the moment can attempt to nibble away at that first principle. If the nibbler prevails, then the case becomes an exception to the first principle, like yelling fire in a theatre has become an exception to free speech.

In this case, I suppose one side could argue “satire” and the other could argue “harassment” and a court could balance the first principle against the argued exception. And if society didn’t like where the court set the new bar, a legislature could be voted in to override the court decision, or even to rewrite the constitution. So, I guess I’m not sure, Professor, why you pose this sort of dichotomy as such an unbridgeable divide. It seems to me like we balance such competing POVs fairly well.

WHAM is well within their rights, here, tacky and right-wing sanctimonious though they may be. Someone should proceed to satirize THEM.

I completely agree with Rick Nelson, comment #1. The University has the right to demand a certain level of discourse from their students when they are engaged in campus activities. What would happen at one of these Christian colleges if a group of students started publishing tracts that show Creationism as the idiocy it is? Ha! I would like to see that!

This is an internal issue between a club and the Student SENATE Organization Advise and Review Committee, Mr. Fish. I do not now why you left that SENATE part out?

A SENATE is an elected representative body. It therefore is charges with making plicies and decisions for its constituents. Obviously, the College Republicans do not have much representation at Rhode Island, otherwise its sympathizers would have found a way to have the Student SENATE dictate a different policy. The reason why is because they are a MINORITY who could not garner enough votes in the Senate to wield MAJORITY power.

Why is it necessary to encourage, embolden, and foster stupidity and ill will? Why should the school give a sense of legitimacy to naked racism?

David Horowitz and College Republicans around the country are in the midst of a Right-Wing jihad, sending suicide bombers like this feckless goup at RI on missions to explode their college careers for the near-religious goal of achieving a PR profile at these schools that is much greater than their meager numbers and has much more POWER than they deserve or earn through votes.

These kids have become invitees and celebrated guests at Conservative gatherings and media, and will continue to be so.

I don’t want or need narrow-viewpoint screeds given EQUAL time, Mr. Fish. Let them hand out leaflets on the Quad with Che Guevara supporters, lesbian transgender students, Falun Gong cultists and other MINORITIES.

The only reason this is news is because this particular fringe element are “CONSERVATIVES”.

The 1st amendment rights of the Republican group can be invoked in this case because the Student Review Committee of the University is considered to be empowered by the State. Therefore, it’s as though the State itself was squelching free speech (there is a line of court cases to this effect). And that’s where 1st amendment rights come into play – the State suppressing free speech. Had this occurred at a private school, or were it an action by a student committee that was not sanctioned by the school, there would be a different result.

I agree with Prof. Fish: the problem is a simple disconnect about the definition of “appropriate speech.” Listen to some PC-mongers out there, and nothing more offensive than “may I have a cup of coffee, please” is acceptable. On the flip side, you have Chris Rock.

Schools of any kind are a murky ground where free speech is often curtailed and often with cause; the younger the speaker, the less likely s/he is to have an adequate social filter and the more likely s/he is to harm somebody with words. In elementary and high schools, youth makes the decision in favor of controlling speech easier, but universities and colleges pose a unique challenge: how can an institution charged with expanding the minds of its (adult) students reconcile education with restrictions on speech? The question gets even more complicated at a public university.

It’s really a school’s perogative to decide whether it wants to favor protecting its students’ feelings or allowing them real freedom. At a public school, I would argue that these kinds of restrictions dance too close to a state saying, “you can’t talk,” but, again, it’s really the schools decision. The students that agree to go there agree to abide by the rules. In this particular case, however, it seems to me that, since nothing explicitly offensive was said (in order to understand the controversy of offering a WHAM scholarship, you need to think just that little extra bit. no name calling, no real rule breaking, just a spark of edgy wit), this amounts to some stuffed shirts not finding a joke very funny. (For the record, I chuckled when I first read about it) rich kolker above makes a good point: if dead babies on a poster on a stick are acceptable, so is a (moderately witty) joke that everybody else seems to have been in on. Something tells me this isn’t an attempt on the part of the College Republicans to overturn Bollinger. It was just a joke. I laughed.

Right–there are no constitutional issues. Nobody has been arrested. There is his insinution that university governance is somehow like the government, but thank goodness, our system, flawed as it is, is a heck of a lot more fair in its process than are universities, with their secret votes and veiled accountabilities. What is truly appalling here is the implication that all those poor Republican kids out there need their free speech protected in the big, bad, politically correct university. I’m a law student, and I’m not even at one of the notoriously conservative elite schools, and I can tell you, it’s not the conservatives who are losing ground in academia. The few liberal law professors left at my school are starting to joke aloud about the how the last one of them leaving the left-hand side of the building will have to turn off the lights.

I am a liberal Democraat and agree with the position taken by FIRE — the Republican group should have been permitted to speak and not required to apologize.

It is a huge mistake for liberals and so-called progressives to permit right-wing conservatives to portray themselves as the advocates for and protectors of free speech. We should all advocate free speech, even when that speech may be offensive. Letting the right-wing “own” this argument undermines the position of moderates and liberals.

On the constitutional question: a university that accepts federal funding must accord its students first amendment protections. That is why universities can be sued for free speech violations.

Moreover, as I’ve commented here before in response to Prof. Fish’s excellent column on the Don Imus firing: a “private” forum may be public-in-fact, if not constitutionally, if it is a significant source of public information. Certainly, the media is one such source. I opposed Imus’ firing because I believe that what works for the left will eventually be exploited by the right; if liberal interest groups can pressure CBS and MSNBC to fire Imus, then right-wing groups can use the same methods against Bill Maher and Jon Stewart. Similarly, pressures exerted against the Republican campus organization can be used with similar effectiveness against the Democrats. Hence, regardless of the constitutional issue, the campus organization should not have been suspended.

Why not “fight bad speech with good speech” by writing an article for the campus newspaper explaining precisely why the Republican’s “scholarship” prank was insenstivie and dumb?

For most of my life I have considered myself to be a political conservative. I understood that to mean one who believes in the rule of law and the “First Principles” set down by the Constitution, as amended. I have recently come to understand that our constitution is in itself a rather liberal document in that it gives the power of rule to the citizens of the republic and denys the idea of political class.

That was confusing to me for a while, but it indeed represents who I am, socially liberal and politically conservative in favor of Constitutional first Principles. In that light I applaud the actions of FIRE and of the comments offered by Mr. Fish.

It seems to me nearly impossible to stay on one side of the issue socially, and incredibly important to stand on the side of first principles politically.

Certainly as a society matures in it’s civility it should expect it’s laws to reflect and support those improved maturities. I think most in the law profession are of a mind that the law is a living entity requiring renewed understanding to old principles and new laws for emerging relationships.

Morris Dees co-founder of The Southern Poverty Law Center //www.splcenter.org says it well: “It may not be illegal to hate, but it is illegal to hurt.”

Hopefully someday as we mature with empathy and understanding for a life lived well we’ll fully understand how hurtful hate is.

I am a Democratic moderate who has been radicalized by the Bush/Cheney/Rove attempt to subvert our government in its never ending efforts to achieve a permanent Republican majority and by their frequent and blatant commission of “high crimes and misdemeanors” in the so-called Global War on Terror. The Rhode Island dust-up is another example of the fact that most Americans really don’t believe in the First Amendment. Nat Hentoff wrote a book a number of years ago entitled “Free
Speech for Me But Not For Thee” which perfectly captures the attitude of far too many people. I would feel a lot better about the bona fides of FIRE if there were some examples of their having defended the free speech of liberals and their causes. In their absence I suspect that FIRE is yet another example of an “Astro-Turf” group, funded by corporate money and/or the super-rich. In other words, another example of the kind of group which drives so much of our political discourse in the world of the corporate media.

“What would happen at one of these Christian colleges if a group of students started publishing tracts that show Creationism as the idiocy it is?”

One thing you wouldn’t see in that case is FIRE taking any interest. For all its blathering about free speech, FIRE has declared colleges and universities with religious affiliations beyond its purview… so if you’re at BYU or Notre Dame or Liberty University and you run into a free speech issue, you’re out of luck. FIRE doesn’t want to hear from you.

FIRE’s strategy is to choose a few high-profile liberal cases and make a big noise about them (although its intervention in such cases is remarkably gentle), to help conceal the fact that the vast majority of cases it gets involved in are in support of conservatives. If you’re David Graeber, an anthropologist and anarchist who was denied tenure at Yale because he spoke out in support of the graduate student union there, or if you’re Norman Finkelstein, with Alan Dershowitz coordinating your denial of tenure… sorry, FIRE ain’t interested. (In fact, the only notices of Finkelstein’s case on the FIRE web site are all negative ones, in article posted from National Review and Front Page Magazine.)

Let’s not shut down college Young Republicans.Where else will our next generation of white collar criminals come from? College young republican
organizations gave us Ralph Reed
Jack Abranoff and other little tricksters. After all elite white boys will be elite white boys.

Nibot’s last point is most noteworthy. A value of free speech is that it provides ability to engage in meaningful public discourse about the things we value and believe. Threatening power plays to force silence or compliance (and it is paradoxical that the situation forced FIRE to do that as well) seems to ignore the reason the 1st amendment is as valuable as it is. The WHAM scholarship is mildly clever, but intellectually immature; but it came from students, after all, not mature adults. What are they learning from all this but that you need to muster majority status of public opinion to ‘get away’ with saying what you believe, which is precisely the sentiment that gave rise to the scholarship? Doesn’t someone at URI that sees that have the sense and wit to respond in a dialogue in kind? Or is this, depressingly, the lesson they ought to learn: speech is power-play, not a part of dialogue leading to understanding.

As a moderate Democrat, I have never understood how others who claim to be politically liberal can have such a fundamentally illiberal (mis)understanding of what free speech is and where it belongs. Your attempts to group conservatives in with other cultists is disturbing and opportunistic – I suspect your position would change in an instant if the politics of this situation were reversed.

I hope, for the sake of your hypothetical students, that you are not in academia.

If there is a spirit of the first amendment, it is that political discourse is protected, including things that I disagree with. It pains me to say that the “scholarship” people should absolutely have been left alone.

Prof. Gould cites a survey showing that 55 percent of students “don’t think that the right of free speech allows people ‘to say things in public that might be offensive to racial groups'”.

What does that survey have to do with the issue? The whole point of the Bill of Rights is to protect certain individual rights from the vagaries of majority opinion. Even if 99% of students thought that free speech should be abridged it wouldn’t matter unless they could organize to pass a constitutional amendment.

Rick Nelson’s point is short-sighted. We believe in free speech because it *causes* discourse. The principles in which this country was founded are principles because not because they’re arcane legalistic tradition or jargon, but because they work in perpetuating healthy societies. And our academic institutions should reflect that health. What those kids did was nothing more, and nothing less, than satire. Perhaps this particular satire was in bad taste, but how is a kid to ever learn good taste if he’s not open to express him or herself? Free expression is the end, the means, and the nourishment for our free world.

It is within the rights of the Student Senate to revoke the charter of the College Republicans for cause. That is not a freedom of speech issue, it is a licensing issue. A charter is a grant of legitimacy that can claim support by association with the granter. If the charter is violated it can be withdrawn. Once withdrawn, the uncharterd College Republicans can continue to exercise their freedom to offend wherever they choose.

As member of a university senate at another school, I think the decision to consider revoking the club’s rights on campus may have been justified. Funding for many of these groups often comes at least partially from tuition or other student fees and is then distributed to all the groups on campus by the finance committee of the student senate. Since the money comes from the entire student body, it is often stipulated by the senate that, for example, all events must be open to the public. Their event (scholarship) was therefore a justifiable expense until they actually stipulated the winner must be a white heterosexual male. If a black lesbian decided to write a piece of tremendous satire and submit her essay, it should have been allowed. The republican students, of course, could not have been forced to choose her essay either. However, the issue changes from protected speech to legislative choice when it becomes a matter of giving money. The most proper action by the senate may be to suspend funding for this group for infringing its policies (not for being unpopular and tasteless).

The scholarship that the College Republicans put out there has been generally described as one of two things, tacky (or tasteless) or racist. While it was certainly tacky (and tasteless), calling it racist is essentially the liberal version of the conservative tactic of labelling dissenters as un-patriotic. Coming from either side it’s not true, not productive to the debate, and, frankly, puerile.

As satire, I found their “scholarship” vaguely amusing, but ultimately fairly childish. But their underlying point, which I think is that we should have an equal society, as opposed to an equitable society, deserves to be debated. We are certainly not going to arrive at a national consensus by shouting down people we disagree with or staking out the extremes of an issue and refusing to hear other opinions.

Personally, I disagree with the College Republicans on this; I favor an equitable society because we don’t all start with the same advantages. But I see the validity in their point of view and absolutely believe they were well within the bounds of civil discourse (although pushing the bounds of adult discourse). Given the vitriolic statements coming from the left in defense of positions I generally agree with, liberals have no ground whatsoever to try to shut these guys up based on offensiveness. A great deal more civility all around wouldn’t hurt anybody.

Having read Mr Fish’s last two commentaries I have learned an important lesson. Not to read anymore of his apologist sophistry written in defense of the mean spirited. Someone much wiser than he made a distinction about 2000 years ago between what is the law and what is JUST. I guess that makes Mr. Fish a modern day Philistine.

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Stanley Fish is a professor of humanities and law at Florida International University, in Miami. In the Fall of 2012, he will be Floersheimer Distinguished Visiting Professor at the Benjamin N. Cardozo School of Law. He has also taught at the University of California at Berkeley, Johns Hopkins, Duke University and the University of Illinois, Chicago. He is the author of 15 books, most recently “Versions of Antihumanism: Milton and Others”; “How to Write a Sentence”; “Save the World On Your Own Time”; and “The Fugitive in Flight,” a study of the 1960s TV drama. “Versions of Academic Freedom: From Professionalism to Revolution” will be published in 2014.